w w w . L a w y e r S e r v i c e s . i n



Aroni Tubes Private Limited v/s West Bengal Agro Industries Corporation Limited & Others


Company & Directors' Information:- WEST BENGAL AGRO-INDUSTRIES CORPN LTD [Active] CIN = U29211WB1968SGC027349

Company & Directors' Information:- K. N. C. AGRO LIMITED [Active] CIN = U01500WB2005PLC102657

Company & Directors' Information:- F AND K AGRO PRIVATE LIMITED [Active] CIN = U01111PN1980PTC014563

Company & Directors' Information:- R K B AGRO INDUSTRIES LIMITED [Active] CIN = L17100KA1979PLC003492

Company & Directors' Information:- R T AGRO PRIVATE LIMITED [Active] CIN = U15400MH1988PTC122934

Company & Directors' Information:- N M AGRO PRIVATE LIMITED [Active] CIN = U15209DL2000PTC103461

Company & Directors' Information:- K F AGRO PRIVATE LIMITED [Active] CIN = U01132PB1998PTC021937

Company & Directors' Information:- T K M AGRO LIMITED [Active] CIN = U01119TZ2000PLC009159

Company & Directors' Information:- J R AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15342UP1982PTC005792

Company & Directors' Information:- B M AGRO INDUSTRIES LIMITED [Active] CIN = U74899DL1992PLC049988

Company & Directors' Information:- K B TUBES PRIVATE LIMITED [Strike Off] CIN = U25202HR2001PTC034632

Company & Directors' Information:- R S AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15319DL1998PTC097025

Company & Directors' Information:- S N T AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U01122DL1997PTC086925

Company & Directors' Information:- M S AGRO PRIVATE LIMITED [Active] CIN = U01403WB2011PTC163653

Company & Directors' Information:- S K K AGRO PRIVATE LIMITED [Active] CIN = U01110DL2007PTC163157

Company & Directors' Information:- S F TUBES PRIVATE LIMITED [Active] CIN = U28910WB2014PTC200568

Company & Directors' Information:- D D AGRO INDUSTRIES LIMITED [Active] CIN = U24219PB1999PLC022487

Company & Directors' Information:- P N AGRO PVT LTD [Active] CIN = U01401WB1992PTC056261

Company & Directors' Information:- B R V AGRO PRIVATE LIMITED [Strike Off] CIN = U15139UP2007PTC034299

Company & Directors' Information:- T C TUBES PRIVATE LIMITED [Active] CIN = U74992MH2011PTC224694

Company & Directors' Information:- A A AND A AGRO LIMITED [Converted to LLP] CIN = U01111DL1986PLC025101

Company & Directors' Information:- S S D AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15100MH1998PTC113744

Company & Directors' Information:- M B TUBES PVT LTD [Active] CIN = U74899DL1990PTC041247

Company & Directors' Information:- B. P AGRO INDIA PRIVATE LIMITED [Active] CIN = U15132DL2019PTC357421

Company & Directors' Information:- M Y AGRO PRIVATE LIMITED [Active] CIN = U51221DL2011PTC215043

Company & Directors' Information:- BENGAL INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL2001PTC110177

Company & Directors' Information:- S. A. B. INDIA AGRO INDUSTRIES LIMITED [Active] CIN = U01403UP2009PLC038365

Company & Directors' Information:- U K AGRO INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U15114UP2003PTC028107

Company & Directors' Information:- H R D AGRO PRIVATE LIMITED [Active] CIN = U15490PB2006PTC030412

Company & Directors' Information:- R. K. AGRO INDUSTRIES PRIVATE LIMITED [Under Process of Striking Off] CIN = U15410WB2012PTC180269

Company & Directors' Information:- C F L AGRO PRIVATE LIMITED [Strike Off] CIN = U01409KA2001PTC028797

Company & Directors' Information:- R J AGRO INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U15311KA2005PTC035485

Company & Directors' Information:- S O I AGRO INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U15310GJ2010PTC059966

Company & Directors' Information:- L K AGRO PRIVATE LIMITED [Active] CIN = U15140MH1998PTC115185

Company & Directors' Information:- B N TUBES PRIVATE LIMITED [Active] CIN = U74899DL1993PTC056601

Company & Directors' Information:- B B TUBES PRIVATE LIMITED [Active] CIN = U27106PB2000PTC023600

Company & Directors' Information:- ARONI TUBES PRIVATE LIMITED [Active] CIN = U74999WB1996PTC079621

Company & Directors' Information:- M C TUBES PVT LTD [Active] CIN = U27105WB1988PTC044270

Company & Directors' Information:- S D S TUBES PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049996

Company & Directors' Information:- C S TUBES PRIVATE LIMITED [Active] CIN = U27200MH2000PTC125998

Company & Directors' Information:- H D AGRO PRIVATE LIMITED [Strike Off] CIN = U01111MH1996PTC097451

Company & Directors' Information:- P C L AGRO PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049537

Company & Directors' Information:- A S AGRO PRIVATE LIMITED [Active] CIN = U74899DL1989PTC040467

Company & Directors' Information:- M R TUBES PRIVATE LTD [Active] CIN = U74899DL1988PTC031808

Company & Directors' Information:- S N N AGRO PRIVATE LIMITED [Active] CIN = U01114JH2016PTC008919

Company & Directors' Information:- R R S AGRO PRIVATE LIMITED [Strike Off] CIN = U15139DL2010PTC209756

Company & Directors' Information:- S I P AGRO INDUSTRIES LIMITED [Strike Off] CIN = U01403WB2012PLC188362

Company & Directors' Information:- AGRO PRIVATE LIMITED [Strike Off] CIN = U51101KA1962PTC001475

Company & Directors' Information:- M J TUBES PVT LTD [Strike Off] CIN = U27209WB1985PTC038634

Company & Directors' Information:- D P TUBES PVT LTD [Strike Off] CIN = U25191CH1994PTC015507

Company & Directors' Information:- S. S. AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15490PN2013PTC146574

Company & Directors' Information:- D. J. AGRO PRIVATE LIMITED [Strike Off] CIN = U01112DL1994PTC057414

Company & Directors' Information:- G A AGRO PRIVATE LIMITED [Active] CIN = U01229KL2002PTC015736

Company & Directors' Information:- R M TUBES PRIVATE LIMITED [Active] CIN = U74899DL1990PTC040707

Company & Directors' Information:- M K B AGRO PRIVATE LIMITED [Active] CIN = U01100MH1996PTC101802

Company & Directors' Information:- T D K AGRO PRIVATE LIMITED [Active] CIN = U29190BR1991PTC004486

Company & Directors' Information:- S G AGRO PRIVATE LIMITED [Active] CIN = U01122KA1995PTC017091

Company & Directors' Information:- J J AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15130MH1980PTC023302

Company & Directors' Information:- A R AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1992PTC050526

Company & Directors' Information:- AGRO INDIA PRIVATE LIMITED [Active] CIN = U01407AR2013PTC008381

Company & Directors' Information:- K M TUBES PVT LTD [Strike Off] CIN = U27109WB2006PTC109054

Company & Directors' Information:- U & V AGRO PRIVATE LIMITED [Active] CIN = U01403TZ2015PTC021823

Company & Directors' Information:- B A B AGRO LTD [Strike Off] CIN = U24231MH1993PLC073114

Company & Directors' Information:- M. M. TUBES PRIVATE LIMITED [Under Process of Striking Off] CIN = U26900DL2010PTC202744

Company & Directors' Information:- G S AGRO INDUSTRIES PVT LTD [Active] CIN = U01132WB1990PTC049960

Company & Directors' Information:- D V AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL1993PTC051892

Company & Directors' Information:- B A B AGRO LTD [Active] CIN = U24233WB1987PLC043179

Company & Directors' Information:- B C M AGRO PRIVATE LIMITED [Active] CIN = U01119WB1999PTC090308

Company & Directors' Information:- K. K. AGRO PVT. LTD. [Strike Off] CIN = U51420WB1987PTC042090

Company & Directors' Information:- H & W AGRO PRIVATE LIMITED [Strike Off] CIN = U01400MH2012PTC238144

Company & Directors' Information:- K D AGRO PRIVATE LIMITED [Converted to LLP] CIN = U15312DL2005PTC131996

Company & Directors' Information:- BENGAL TUBES PRIVATE LIMITED [Strike Off] CIN = U27201WB1996PTC082024

Company & Directors' Information:- H R AGRO PRIVATE LIMITED [Active] CIN = U01119PB1995PTC016403

Company & Directors' Information:- C K N AGRO PRIVATE LIMITED [Active] CIN = U01300KL2020PTC064742

Company & Directors' Information:- P AND G AGRO INDUSTRIES P LTD [Strike Off] CIN = U99999UP1985PTC007509

Company & Directors' Information:- R. K. G. S. AGRO INDUSTRIES PRIVATE LIMITED [Active] CIN = U15100UP2017PTC097391

Company & Directors' Information:- A Q AGRO PVT LTD [Under Process of Striking Off] CIN = U51209WB2006PTC109930

Company & Directors' Information:- S E AGRO PRIVATE LIMITED [Active] CIN = U52500AP2016PTC103446

Company & Directors' Information:- S U B AGRO PRIVATE LIMITED [Active] CIN = U24129PN2000PTC015404

Company & Directors' Information:- A S G AGRO LIMITED [Strike Off] CIN = U01119HR2004PLC035459

Company & Directors' Information:- T & T AGRO PRIVATE LIMITED [Active] CIN = U01132WB1999PTC090368

Company & Directors' Information:- C L AGRO PRIVATE LIMITED [Strike Off] CIN = U74120UP2012PTC051898

Company & Directors' Information:- P M S AGRO PVT LTD [Strike Off] CIN = U29211PB1994PTC014448

Company & Directors' Information:- K. N. TUBES PRIVATE LIMITED [Active] CIN = U27109WB2007PTC118571

Company & Directors' Information:- B R K AGRO PRIVATE LTD [Strike Off] CIN = U29211PB1994PTC014302

Company & Directors' Information:- R TUBES PVT LTD [Strike Off] CIN = U25201RJ1981PTC002305

Company & Directors' Information:- R E I AGRO LTD. [Active] CIN = U01111WB1994PLC065082

Company & Directors' Information:- INDUSTRIES CORPN OF BENGAL LTD [Strike Off] CIN = U17111WB1940PLC010029

Company & Directors' Information:- V G AGRO INDUSTRIES LIMITED [Strike Off] CIN = U01400DL1993PLC051666

Company & Directors' Information:- P & S AGRO INDIA LIMITED [Strike Off] CIN = U01403MH2011PLC214782

Company & Directors' Information:- D N D AGRO (INDIA) LIMITED [Active] CIN = U01403PN2011PLC139235

Company & Directors' Information:- L C A AGRO PRIVATE LIMITED [Strike Off] CIN = U01112UP2005PTC029657

Company & Directors' Information:- R K TUBES PVT LTD [Active] CIN = U27209WB1987PTC041904

Company & Directors' Information:- V M G AGRO INDIA LIMITED [Active] CIN = U01100MP2011PLC026434

Company & Directors' Information:- G D AGRO PRIVATE LIMITED [Strike Off] CIN = U24122UP1993PTC015164

Company & Directors' Information:- N K TUBES PVT LTD [Active] CIN = U27200MH1992PTC069376

Company & Directors' Information:- P B AGRO PRIVATE LIMITED [Amalgamated] CIN = U26960MH1990PTC057137

Company & Directors' Information:- R A P AGRO INDIA PVT LTD [Strike Off] CIN = U14200WB2006PTC107514

Company & Directors' Information:- G T AGRO INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL2005PTC142577

Company & Directors' Information:- F AND K AGRO PVT LTD [Strike Off] CIN = U29248PN1980PTC022759

Company & Directors' Information:- T S AGRO INDUSTRIES PVT LTD [Strike Off] CIN = U15209UP1987PTC008974

Company & Directors' Information:- E M AGRO (INDIA) PRIVATE LIMITED [Strike Off] CIN = U02001UP1997PTC022261

Company & Directors' Information:- J S AGRO PRIVATE LIMITED [Strike Off] CIN = U01300PB1993PTC013943

Company & Directors' Information:- A N AGRO PRIVATE LIMITED [Strike Off] CIN = U01119DL1996PTC081855

Company & Directors' Information:- V R L AGRO PRIVATE LIMITED [Strike Off] CIN = U85110KA1999PTC024717

Company & Directors' Information:- M A S TUBES PRIVATE LIMITED [Strike Off] CIN = U74999DL2000PTC105430

Company & Directors' Information:- B AND P AGRO INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U01110MH1972PTC015574

Company & Directors' Information:- T R TUBES PVT LTD [Strike Off] CIN = U27109HR1988PTC030280

Company & Directors' Information:- P. S. R. AGRO PRIVATE LIMITED [Active] CIN = U24248UP1974PTC004017

Company & Directors' Information:- I R TUBES PVT LTD [Active] CIN = U25191MH1981PTC024179

Company & Directors' Information:- O N AGRO PRIVATE LIMITED [Active] CIN = U74899DL1988PTC031986

Company & Directors' Information:- P V R K AGRO INDUSTRIES PVT LTD [Strike Off] CIN = U01119AP1988PTC008395

Company & Directors' Information:- K R S AGRO PRIVATE LIMITED [Strike Off] CIN = U01400PN2011PTC141711

Company & Directors' Information:- J K AGRO PRIVATE LIMITED [Strike Off] CIN = U74900PY2011PTC002548

Company & Directors' Information:- W B S AGRO PRIVATE LIMITED [Active] CIN = U01122PB2003PTC025879

Company & Directors' Information:- K P TUBES PRIVATE LIMITED [Active] CIN = U28910MH2015PTC260603

Company & Directors' Information:- K R P AGRO INDUSTRIES PVT LTD [Active] CIN = U01110MH1991PTC062304

Company & Directors' Information:- G T M AGRO PRIVATE LIMITED [Strike Off] CIN = U01100MH2005PTC150816

Company & Directors' Information:- Y K AGRO PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U74999DL2013PTC250398

Company & Directors' Information:- N P M AGRO PRIVATE LIMITED [Strike Off] CIN = U15494DL2011PTC214942

Company & Directors' Information:- B L B AGRO PRIVATE LIMITED [Strike Off] CIN = U51200DL2012PTC244511

Company & Directors' Information:- D A AGRO PRIVATE LIMITED [Active] CIN = U74900DL2015PTC288168

Company & Directors' Information:- D. B. AGRO PRIVATE LIMITED [Active] CIN = U01100MP2010PTC025035

    WPA. No. 2504 of 2021 with IA. No. CAN 1 of 2021

    Decided On, 23 February 2021

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA

    For the Petitioner: Ayan Banerjee, Debasree Dhamali, Advocates. For the Respondents: Joydip Kar, Sarmila Das, Advocates.



Judgment Text

1. The petitioner challenges a Notice Inviting e-Tender (NIT) dated January 9, 2021 floated by respondent no.1 for the work of installation of Solar Submersible Pump (50 nos.) at Jhargram District. Learned counsel for the petitioner argues that Clause 2.12 of the NIT, debarring Joint Ventures and consortia from participating in the tender, was illegal, being violative of Article 14 of the Constitution of India. That apart, the said Clause contravenes an Order dated December 18, 2020 issued by the Department of Water Resources Investigation & Development, Government of West Bengal, wherein it was stipulated that Joint Ventures, if required, will also be allowed in the tender processes as contemplated therein, which covers the present tender as well.2. Learned counsel next argues that Clause 22 of the NIT, disallowing price preference and other concessions, violates the Notification dated November 19, 2004 issued by the Finance Department, Audit Branch of the Government of West Bengal. By the said Notification, Rule 47A was inserted in the West Bengal Financial Rules, Volume I, which provides that the State Government Departments/Directorates/Offices, etc., shall adopt the measures stipulated therein in the matter of making of purchases and execution of all works. Sub-rule (1) of Rule 47A stipulates that all registered SSI units of the State are to be given 15 per cent price preference vis--vis large and small scale Industrial Units and other SSI units located outside the State.3. It is further argued on behalf of the petitioner that, by the same Notification dated November 19, 2004, it was provided that registered SSI units of the State shall be exempted from payment of earnest money for tenders. Such clause was violated in the impugned NIT, since online bids for the said tender could not be uploaded without prior payment of earnest money.4. Learned counsel for the petitioner argues that tenders having similar illegal clauses were floated earlier by respondent no.1, on which representations were made by a sister concern of the petitioner. Pursuant to such representation, such previous tenders were withdrawn, but again the same illegalities were repeated in the present impugned tender. The petitioner made a representation on January 11, 2021, pointing out the illegalities and asking for withdrawal of such illegal tender. Without considering such representation in the pre-bid meeting, the authorities proceeded with the tender and opened the technical bid on February 1, 2021, subsequently uploading it on February 4, 2021.5. After service of the writ petition and filing of the same, the matter was enlisted on February 5, 2021, when the respondents went unrepresented. Subsequently, despite having full knowledge of the writ petition, work order was issued in favour of a third party on the morning of February 8, 2021, on which date the writ petition was taken up for hearing.6. Learned counsel argues that Joint Ventures are independent legal entities and enjoy similar rights as partnerships, while participating in Government Tenders. Thus, such Ventures are protected under Article 14 of the Constitution of India, vitiating the clause of the impugned NIT preventing Joint Ventures from participating in the tender.7. In this context, learned counsel relies on New Horizons Limited and another vs. Union of India and others, reported at (1995) 1 SCC 478 and Gammon India Limited vs. Commissioner of Customs, Mumbai, reported at (2011) 12 SCC 499, where the concept of Joint Venture was discussed.8. Learned counsel for the petitioner lastly contends that the clauses of the tender were tailor-made to suit the purpose of some chosen contractors. A comparison of the respective quotations, evident after opening of the price bid, proves such fact. The financial bid was opened on February 6, 2021, on a Holiday, to frustrate the instant writ petition. At least two participants have quoted the same rates, which match each other completely, which could not have been possible unless the bidding was done by such bidders in consultation.9. It is further argued that five the bidders have varied their rates for the same item (50 Submersible Pumps) in respect of different tenders in such a synchronized manner that each participant has been awarded two work orders. Learned counsel argues that it is extremely improbable that, for the same item, five participants have quoted different rates in respect of the eight tenders, which ultimately led to each of such participants being awarded two work orders. This clearly shows the understanding between the bidders and formation of a cartel, which has been prohibited by the Supreme Court in Excel Crop Care Limited vs. Competition Commission of India and another, reported at (2017) 8 SCC 47. In the said judgment, the Supreme Court deprecated the formation of cartels, which has an adverse effect on competition resulting in increase in price bid and is, therefore, prohibited by Section 3 of the Competition Act, 2002.10. Learned counsel appearing for the respondents submits that the writ petition is not maintainable at the instance of the petitioner, since the petitioner does not have the credentials as contemplated under Clause 2 of the NIT. The petitioner has failed to plead or prove in the writ petition that it has done one work of similar nature in the magnitude of 40 per cent or two similar nature of works, each of a minimum value of 30 per cent, of the estimated amount of the tender.11. Moreover, the petitioner has not submitted any bid in the tender process and, thus, cannot contend to be aggrieved by or show affectation of any right of the petitioner in not being able to participate in the tender process.12. As regards the challenge to Clause 2.12 of the NIT, regarding Joint Ventures and consortia being debarred, learned counsel for the respondents contends that the writ petitioner has failed to show that the said clause violates either any fundamental right or any other law or guidelines of the Government.13. The Government Order dated December 18, 2020, relied on by the petitioner on such score, merely provides that Joint Ventures will also be allowed in the tender process, “if required”. Hence, the said Order does not create any mandate that in every tender Joint Ventures should be allowed.14. That apart, the respondents argue that it is settled law that the terms of an NIT cannot be open to judicial scrutiny because it is in the realm of contract, unless it is established that the terms of the tender were so tailor-made as to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. Learned counsel places reliance on Meerut Development Authority vs. Association of Management Studies and another, reported at (2009) 6 SCC 171, in support of such proposition.15. With regard to applicability of Rule 47A, as introduced by the Notification dated November 19, 2004, learned counsel for the respondents argues that the impugned tender was floated for a works contract and the tenderer is required to procure materials for the purpose of carrying out the works contract. The petitioner, it is argued, does not manufacture any Solar Unit, nor Pumps or PVC Pipes. The present contract is not for supply of materials by a manufacturer but a contract where the tenderers have to procure such materials like Solar Panel, Pump, PVC Pipes, cement and brick and thereafter construct a structure, do boring and sinking of the pump and connecting it to a solar panel for automatic operation.16. The expression “means and includes” in the explanation to Rule 47A clearly indicates that the same is an exhaustive explanation of the meaning. For such proposition, learned counsel relies on N.D.P. Namboodripad (Dead) by LRs. vs. Union of India and others, reported at (2007) 4 SCC 502.17. The language of Rule 47A, it is argued, leaves no doubt that the facilities incorporated therein are required to be extended to manufacturing units of the State. The impugned tender, however, is not restricted to supply of any manufactured item by a manufacturing unit but is a works contract to be executed upon procuring various materials from various manufacturers. Thus, Rule 47A, it is submitted, has no manner of application to the instant case.18. Learned counsel submits that no single manufacturing unit is capable of executing the job contemplated in the impugned tender. The job is to be executed by a bidder who has the infrastructure not only to procure various materials but also to erect and install the same.19. Learned counsel for the respondents further submits that eight tenders have already been finalized and work orders issued. The work is in public interest and any delay in executing the same shall have an adverse effect against such interest.20. Upon hearing counsel and perusing the materials on record, it is evident from Clause 22.0 of the impugned NIT that no price preference and other concession would be allowed for the tender-in-question. The question which arises is whether the said clause contravenes the Notification issued by the Finance Department of the Government of West Bengal on November 19, 2004. Rule 47A, introduced by such Notification, covers all purchases and execution of all works and is not confined to purchases alone.21. Sub-rule (1) of Rule 47A specifically provides that all registered “SSI Units of the State” are to be given 15 per cent price preference vis-vis large and small scale Industrial Units and SSI Units located outside the State.22. The said sub-rule also provides that registered “SSI Units of the State” shall be exempted from payment of earnest money for tenders.23. However, in contradistinction with Sub-rule (1), the expression used in Sub-Rule (2)(b) is “State-based medium and large scale units”, which will also be given 10 per cent price preference over large and medium units and SSI Units of other States.24. The explanation to Rule 47A defines the term “State-based Unit”, which are restricted to manufacturing units.25. The argument of the respondents, that the units covered by Rule 47A have to be manufacturing units, is belied by the language used in the said Rule itself. The distinction between the expressions “SSI Units of the State” and “State-based Unit” makes it amply clear that two different categories of units are envisaged in the rule. The expression “State-based unit” has only been used in Sub-rule (2)(b) of Rule 47A, which relates to medium and large scale units, whereas the SSI Units of the nature of the writ petitioner, being “units of the State” have been provided for in Sub-rule (1) of Rule 47A.26. Such distinction also becomes clear from the use of the term “major” used to qualify the manufacturing units which are covered by the expression “State-based Units”. Hence, the explanation, by its language makes it abundantly clear that the State-based medium and large scale units covered by Rule 47A (2)(b) have to be manufacturing units situated within the State. The expression “major” preceding the term “manufacturing unit” in the explanation is a further indicator in that regard and shows that the expression pertains to medium or large scale units and not small scale industrial (SSI) units.27. The language used in Rule 47A(1), however, relates to registered SSI Units of the State, which are to be given 15 per cent price preference. Since the definition of “State-based Units” does not cover the price preference given to SSI “Units of the State” as envisaged in Sub-rule (1) of Rule 47A, such units cannot be confined to manufacturing units. Thus, the defence of the respondents on that score is invalid. Hence, Clause 22.0 of the NIT was clearly in contravention of the Finance Department Notification dated November 19, 2004. The exemption of earnest money, also contemplated in the said Notification, was violated as well by making it a mandatory prerequiite to deposit earnest money for participating in the online bidding process. The NIT is also de hors the Notification on such score.28. However, the petitioner’s objection as regards Clause 2.12, preventing Joint Ventures and consortia from participating in the tender, cannot be labelled as illegal, since the Government Order dated December 18, 2020 makes it optional (“if required”) to include Joint Ventures in respect of a tender process. It falls within the discretion of the Tendering Authority as to what type of participants it wants to execute the work contemplated in the tender. A classification between the Joint Ventures/consortia and other juristic entities cannot be said to be so unreasonable as to violate Article 14 of the Constitution of India. As held by the Supreme Court in Meerut Development Authority (supra), a tender process is not open to judicial scrutiny unless it is established to be so tailor-made as to suit the convenience of any particular person.29. In such context, the allegation of cartelization levelled by the petitioner assumes importance. The petitioner has sought to make out a case that the NIT was tailor-made to suit the purpose of a particular cartel/ cartels. For such proposition, the petitioner relies on the matching bids of at least two of the participants and the plan behind synchronization of the price quoted by five out of the eight bidders, which ensured that each of the said five bidders would be awarded two work contracts. A careful perusal of the materials produced by the petitioner vindicates such stand. Not only were some of the bids exactly identical, the synchronicity between the bids of five tenderers, being the B.K. Enterprise, Equipments & Spare Agency, Bingas Electrical Electronics, S.N. Polymer Pvt. Ltd. and Z Star Commotrade, is clearly reflected in the Financial Bid Chart of the tenders opened on Febru

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ary 6, 2021.30. Although such cartelization has not been proved beyond reasonable doubt, sufficient presumption is raised in that regard by the synchronicity between a majority of the bidders.31. Such attempt at catering to the participation of only some of the bidders, in conjunction with gross violation of the Finance Department Notification dated November 19, 2004, by precluding price preference and concession in Clause 22.0 of the NIT and making it compulsory to deposit earnest money prior to online uploading of the bids, vitiates the impugned tender process.32. The respondents could not provide sufficient justification for such patent contravention of the Notification dated November 19, 2004, which binds respondent no.1, the Tendering Authority, which is a Government of West Bengal Undertaking. As such, the impugned tender was de hors the Government Notification and contravened principles of natural justice. Hence, the impugned tender has to be set aside.33. Accordingly, WPA No.2504 of 2021 is allowed, thereby setting aside the Notice Inviting e-Tender (NIT) dated January 9, 2021 (Annexure P-3 at page 23 of the writ petition), impugned in the present writ petition. Any action and/or work order taken/issued pursuant to such NIT are also hereby set aside and quashed. All connected pending applications are disposed of accordingly.34. There will be no order as to costs.35. Urgent certified copies of this order shall be supplied to the parties applying for the same, upon due compliance of all requisite formalities.
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